By Arsen Ostrovsky, John Spencer & Brian L. Cox
Friday, January 10, 2025
In the last week, there has been intense discussion
focused on Kamal Adwan Hospital in northern Gaza, reportedly one of the last functioning hospitals in the area. This has been part
of a broader ongoing debate in the war between Hamas and Israel, on the status
of hospitals in wartime and under what circumstances they might become objects
of legitimate military operations.
Under International Humanitarian Law, it is a
foundational principle that hospitals receive special protected status. For
example, Article 8(2) of the Rome Statute prohibits “intentionally directing attacks against”
hospitals provided “they are not military objectives.” Article 11 of the Second
Protocol to the Geneva Conventions provides that medical units shall be “protected at all
times.”
However, this protection ceases if they are “used to
commit hostile acts.”
These rules of international law are recognized by Israel and implemented during its conflict
with Hamas in Gaza.
Hamas, a ruthless terrorist organization, operates
without any regard to the norms of international law or value of human life,
with a longstanding practice of systematically embedding their
operations in hospitals, using civilians as human shields and building military
tunnels underneath hospitals.
Fifteen months into the war initiated by Hamas, there is
hardly a hospital or medical facility in Gaza the terror group has not turned
into a military command center, including the Kamal Adwan Hospital. There,
Israel has detained over 240 Hamas terrorists, including some disguised
as patients, and found caches of weapons, including guns and explosives.
Each of these acts is an undisputed violation of the law of armed conflict.
Among the suspects taken for questioning was the director
of the Kamal Adwan Hospital, Hussam Abu Safiya, who is suspected of being a Hamas
terrorist leader, in addition to approximately 15 terrorists who infiltrated
Israel during the Oct. 7 Massacre. In these circumstances, during which Hamas
turned Kamal Adwan Hospital into a terrorist staging ground, the hospital lost
its protected status under international law and become a legitimate target for
military operations.
Israel’s military objective is clear and defined: to
eliminate the military capabilities of Hamas, which continues to use hospitals
and other civilian areas in Gaza to plan and execute acts of terror against
Israel, as well as the rescue of the remaining 100 hostages that the terror group is holding
captive.
However, merely because Hamas has seized hospitals as its
own personal launching pads and terrorist command centers does not provide
carte blanche to conduct military operations. Nor does it mean that patients
and staff inside the hospital immediately lose their civilian status. Under
humanitarian law, Israel must still abide by fundamental rules such as
distinction, proportionality and precaution. In each case, it has acted in
accordance with its obligation.
Based on clear intelligence, Israel targeted a military
objective used by Hamas terrorists, as evinced by the approximately 240 operatives arrested. There were hardly any civilian
injuries in the operation, indicating that the expected incidental damage was
not excessive in relation to the concrete and direct military advantage
anticipated from the operation.
Israel also took ample precaution, including providing advanced warning,
evacuating civilians and providing additional medical supplies to the hospital.
Prior to the beginning of the targeted operation, as well as the process
during, some 450 patients, as well as caregivers and medical personnel, were
evacuated, while tens of thousands of liters of fuel, food and medical supplies
for the essential functioning of the hospital were also delivered to Kamal
Adwan during this period.
Quite simply, Israel has gone to unprecedented lengths to
comply with its obligations pursuant to the law of armed conflict, whereas
Hamas is doing everything possible in order to maximize casualties.
In the wake of the targeted counterterrorism operation at
Kamal Adwan Hospital, the World Health Organization said that
“The systematic dismantling of the health system in Gaza is a death sentence
for tens of thousands of Palestinians in need of health care.”
To date, the World Health Organization has not condemned
Hamas for the systematic use of hospitals in Gaza for military purposes. The
global call to Hamas should be stop putting hospitals in danger. Many ignore
that Hamas has systematically dismantled the health system in Gaza, with the
acquiescence of an international community that refuses to call it out.
The World Health Organization also fails to acknowledge
that Israel is trying to bolster
the health system in Gaza, working with many groups to supply the five active
hospitals in Northern Gaza and almost 20 field hospitals.
Those who truly care about the wellbeing of civilians in
Gaza, and who are rightfully aghast at the scenes coming out of Kamal Adwan
Hospital would be well advised to direct their outrage at Hamas, which
continues to unconscionably and illegally turn hospitals into their personal
control and command centers and severely risk the lives of innocent civilians.
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